Buehl petitions this Court for habeas corpus relief, alleging
that his incarceration is illegal following a parole
violation hearing. He requests his immediate release.
of background, on May 9, 2011, Buehl entered a plea of nolo
contendere to felony assault with a weapon in the Ninth
Judicial District Court, Glacier County. The District Court
imposed a ten-year prison term with all of the time
suspended. A few months later, the State filed a petition to
revoke because of violations of several probationary terms.
Buehl denied all violations, and the court held an
evidentiary hearing on September 8, 2011. The court found
that Buehl had violated two of his conditions. The court
subsequently revoked his suspended sentence and sentenced him
to a ten-year prison term. The court noted that Buehl was
entitled to 301 days of credit for time served.
to Morrissey v. Brewer, Buehl now argues that his
due process rights have been violated for his initial hearing
after arrest as aparolee. 408 U.S. 471, 92 S.Ct. 2593 (1972).
He asserts that he was arrested and detained on February 1,
2018, and that his preliminary hearing occurred on February
7, 2018 in the Flathead County Jail, which was not where
"the alleged violations occurred" in Poison,
Montana. He maintains constitutional rights' violations
for these reasons: (1) his Probation and Parole Officer was
not present at the hearing for him to confront and
cross-examine, and (2) he was not given an on-site hearing in
Poison within five days of his arrest and detention, pursuant
to § 46-23-1024(2), MCA.
revocation involves certain due process requirements. The
United States Supreme Court has held that following arrest, a
parolee has a right to an administrative on-site hearing at
"the state institution" to determine if reasonable
grounds for revocation exist. Morrissey, 408 U.S. at
485, 92 S.Ct. at 2602. If the state institution is too far,
the court noted that "due process would seem to require
that some minimal inquiry be conducted at or reasonably near
the place of the alleged parole violation or arrest and as
promptly as convenient after arrest while information is
fresh and sources are available." Morrissey,
408 U.S. at 485, 92 S.Ct. at 2602. The high court
specifically stated that parole revocation "is a narrow
inquiry; the process should be flexible enough"
Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. The
Supreme Court emphasized that a parole revocation does not
equate to a criminal prosecution. Morrissey, 408
U.S. at 489, 92 S.Ct. at 2604.
Montana, the parole revocation process has been codified in
both statutes and administrative rules. Sections 46-23-1021,
46-23-1023, and 46-23-1025, MCA; Admin. R. Mont. 20.25.801
(2016). Pertinent here is § 46-23-1024(2), MCA, which
sets forth the process for the on-site hearing to establish
The initial hearing is an onsite hearing but may be conducted
via interactive videoconference and must be held to determine
whether there is probable cause or reasonable grounds to
believe that the arrested parolee has committed acts that
would constitute a violation of parole conditions. An
independent officer, who need not be a judicial officer,
shall preside over the hearing. The hearing must be conducted
at or reasonably near the place of the alleged parole
violation or arrest and within 5 days after arrest. The
parolee must be given notice of the hearing and must be
allowed to appear and speak in the parolee's own behalf
and introduce relevant information to the hearings officer.
review, Buehl is not entitled to habeas corpus relief or his
release because his due process rights have not been
violated. Montana's statutes only provide that a parolee
may have witnesses, not that a parolee may confront his
Probation and Parole Officer since the basis for the arrest
is in a written report. Sections 46-23-1023(2) and
46-23-1024(3), MCA; see also Morrissey, 408 U.S. at
489, 92 S.Ct. at 2604. Section 46-23-1024(2), MCA reads that
"[t]he hearing must be conducted at or reasonably
near the place of the alleged parole violation . .
.." (emphasis added); see also Morrissey, 408
U.S. at 485, 92 S.Ct. at 2602. Kalispell is reasonably near
Poison. While Buehl may correctly argue that a hearing shall
occur within five days after arrest, he does not provide any
other details concerning his arrest and detention. It is
unknown whether he was originally held on a probation and
parole hold pursuant to § 46-23-1023(4), MCA, which
authorizes a probation and parole officer to detain a parolee
up to 72 hours without bail. This hold is interrupted by the
commencement of a parole revocation proceeding. Section
46-23-1023 (4)(c), MCA. Buehl has not provided any supporting
documents to substantiate an onsite hearing delay.
as a petitioner, has the burden to present a prima facie case
that he suffers an illegal incarceration. Miller v.
Eleventh Judicial Dist. Ct, 2007 MT 58, ¶ 14, 336
Mont. 207, 154 P.3d 1186; § 46-22-101(1), MCA. Buehl has
not done so. Therefore, IT IS ORDERED that Buehl's
Petition for a Writ of Habeas Corpus is DENIED.
Clerk of this Court is directed to send a copy of this Order
to counsel of ...